GILLETTE, J.
Reversed and Remanded.
Schwab, Chief Judge, dissenting opinion.
GILLETTE, J.
In this contract action arising out of a dispute over the condition of a roof on a newly constructed building, the trial court granted defendant summary judgment based upon the statute of limitations contained in ORS 12.135(1). We reverse.
Plaintiff Amfac Foods, Inc., dba Lamb-Weston (hereinafter "Lamb-Weston") brought this breach of warranty action against defendant Snyder Roofing Company (hereinafter "Snyder") for the cost of repairing a roof. The roof had been built by Snyder as a subcontractor in the construction of a food processing plant. After completion, Snyder executed, on July 30, 1973, a two-year guarantee of workmanship and materials. Specifically, the guarantee provided:
"WHEREAS, at the inception of such work the Contractor [Snyder Roofing] agreed to guarantee the aforesaid roof against faulty materials or workmanship for a limited period and subject to the conditions herein set forth;
"NOW, THEREFORE, the Contractor hereby Guarantees, subject to the conditions herein set forth, that during a period of two (2) years from the date of completion of said roof, it will, at its own cost and expense, make or cause to be made such repairs to said roof resulting solely from faults or defects in material or workmanship applied by or through the Contractor as may be necessary to maintain said roof in watertight condition."
In its complaint, Lamb-Weston alleged that the defects of which it now complains were discovered and notice of them was given to Snyder within the two years provided in the guarantee. The trial court granted summary judgment to defendant on the theory that plaintiff's action here was one in tort and was therefore not timely filed under ORS 12.135(1). Plaintiff acknowledges that this proceeding was not brought within the two-year period provided in ORS 12.135(1) but contends that the correct statute to be applied is ORS 12.080(1), the statute of limitations for contract actions. ORS 12.080(1) is a six-year statute of limitations; plaintiff's action is timely if it applies.
ORS 12.135(1) provides:
"(1) An action to recover damages for injuries to a person or to property arising from another person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from such other person having furnished the design, planning, surveying, architectural or engineering services for such improvement, shall be commenced within two years from the date of such injury to the person or property; provided that such action shall be commenced within 10 years from substantial completion of such construction, alteration or repair of the improvement to real property."
ORS 12.080(1) provides:
"(1) An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070 and 12.110 and except as otherwise provided in ORS 71.7150* * * *"
Plaintiff is correct. Where, as here, the gravamen of the complaint is not the failure of defendant to properly install a roof in the first instance but, rather, the failure of defendant to abide by its express contractual duty to alleviate such unsatisfactory conditions as might appear during the two-year guarantee period, the complaint sounds in contract and ORS 12.080(1) governs. See Housing Authority of Portland v. Ash National, Inc., 36 Or. App. 391, 584 P.2d 776 (1978).
The dissent's argument to the contrary has some merit, but we think Ash National was correctly decided. We note that a legislative session has passed since that decision and, although ORS 12.135 (1) is a statute of special interest to the building industry, it has not been amended.
Defendant argues that, even if ORS 12.080(1) is the appropriate statute of limitations, the trial court was nonetheless correct in granting summary judgment to defendant because defendant is entitled to prevail under one or more of defendant's alternative theories, viz., (1) that defendant has performed all of its obligations under the guarantee; (2) that the claim advanced by plaintiff has been satisfied; and (3) that, under its own terms, the guarantee has become null and void.
1. PERFORMANCE
Defendant first argues that its only obligation under the guarantee was to maintain the roof in watertight condition, and it has done so. To the contrary, as we read the record, defendant has stopped leaks as they appear but the roof has continued to develop new ones. There remains a factual issue as to whether the roof has been maintained in a watertight condition. Defendant was not entitled to summary judgment on this theory.
2. ACCORD AND SATISFACTION
Defendant next argues that any claim between Lamb-Weston and defendant has been compromised and settled, with defendant having fully performed under the terms of the settlement.
The guarantee in question covered the period from July 30, 1973, to July 30, 1975. On June 9, 1975, representatives from Hoffman Construction Company (the general contractor), Lamb-Weston, Snyder Roofing and Johns-Manville (the roofing manufacturer) met and reviewed the problem. There was a further meeting on June 26, 1975.
Thereafter, Hoffman Construction Company prepared a "memorandum of agreement" expressing its understanding of the verbal agreements of the respective parties. A copy of the Hoffman memorandum was made a part of the motion for summary judgment.
The question is whether the documents submitted by the parties in connection with the motion for summary judgment establish the existence of an accord and satisfaction. They do not.
" '* * * An accord is a contract * * * between creditor and debtor for the settlement of the claim by some performance other than that which is due * * *. Satisfaction takes place when [the] accord is performed * * *.' Restatement, Contracts § 417, Comment a. at 787-788."
Capps v. Georgia-Pacific, 253 Or. 248,
453 P.2d 935 (1969).
The documents establish that, among other things, a dispute exists between the parties as to whether such repair work as defendant did on the roof was satisfactory. What was done and how well it was done remains an unresolved issue of fact. It would have been error to grant summary judgment on this theory.
3. GUARANTEE NULLIFIED
Finally, defendant argues that its guarantee has been rendered null and void by the occurrence of a condition subsequent. The warranty was given subject to the condition, inter alia, that:
" * * * * *
" * * * No work shall be done on said roof, including, but without limitation, openings made for flues, vents, drains, sign braces or other equipment fastened to or set on the roof,
unless the Contractor shall be first notified, shall be given the opportunity to make the necessary roofing application recommendations with respect thereto, and such recommendations are complied with. Failure to observe this condition shall render this guarantee null and void * * *." (Emphasis supplied.)
The affidavits filed in this case make it clear that Lamb-Weston did install some equipment on some portions of the roof without prior approval by defendant. However, in a portion of an affidavit filed by Lamb-Weston, one of Lamb-Weston's engineers stated that:
"Regarding the subsequent conditions referred to in this motion [for summary judgment], Lamb-Weston replaced fans and installed small equipment over the manufacturing area on the [roof of the] plant. Snyder was informed of this. Where openings were required, Snyder Roofing Co. did the work and was paid extra. Furthermore, the leaking problem was not in the manufacturing area. Snyder Roofing Co. is well aware of this."
We think there remain questions not resolved on this record as to whether there was, in fact, a violation of the condition subsequent; the extent of any such violations; and the materiality of any such violation. Summary judgment is not available to defendants on this final ground.
For the foregoing reasons, the summary judgment granted by the trial court is reversed and the cause is remanded for trial.
Reversed and remanded.